Oh my: Is Ginsburg writing the main ObamaCare dissent?

posted at 8:01 pm on June 25, 2012 by Allahpundit

Via DrewM, I’m embarrassed that it didn’t occur to me in the other post to ask whether any of the Court’s liberals have taken on a conspicuously lighter workload lately. Sotomayor’s written the fewest among the Court’s left wing, according to Sean Trende, but that might be due to the fact that she’s a junior justice and isn’t getting as many assigned to her.

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

Here’s the list of slip opinions for the term at the Court’s website. Since May 21, every justice besides Roberts and Ginsburg has authored at least two majority opinions. It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Or … does it mean something more complex? More from that Politico piece:

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown…

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Yeah, given the multiplicity of issues involved in this case, it’d be amazing if there wasn’t a clusterfark of plurality opinions on Thursday morning. Which makes me think, what if they’re splitting the opinion in two, with Roberts writing for five justices on the mandate, say, and Ginsburg writing for five justices on the Medicaid expansion and severability? (Politico notes that this is possible.) Maybe that’s why she’s been quiet for so long — she’s trying to piece together a majority opinion of her own and reworking it as her colleagues object to certain passages in her draft.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Blowback

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Comments

My guess: Roberts writes the opinion that knocks the whole thing out; Ginsberg writes the dissent; and Scalia writes (with Thomas and Alito joining) the concurrence that tries to knock out the Wickard decision. If we are truly lucky, Roberts writes a majority decision that knocks out the Wickard case…

It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

And insurance providers wouldn’t leave business like that. They’d just increase premiums. Once people are paying 50% increases on their premium because of Obamacare, do you think Congress won’t repeal it?

Even with a change in the senate next year to the Pub side there won’t be enough to overcome a filibuster by the dems. We need to recognize that the dems want single payer and keeping the atrocity on line will speed that up.

The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

On the severability issue, one of the things the court considers is the extent to which the remaining parts of the law were dependent on the part of the law that is ruled unconstitutional. At oral arguments in the Obamacare case, the government conceded that several parts of the law (IIRC, mandatory issue was one) were dependent on the mandate — so it seems that those portions of the law, at a minimum, have to go too if the mandate goes.

Even with a change in the senate next year to the Pub side there won’t be enough to overcome a filibuster by the dems. We need to recognize that the dems want single payer and keeping the atrocity on line will speed that up.

chemman on June 25, 2012 at 8:46 PM

It was passed by budget reconciliation, so supposedly can be repealed that way. No cloture vote needed in the Senate. (Do need the GOP holding Congress and WHite House, though).

When Ginsburg was playing coy the other day and babbling about those who know don’t talk etc. She actually said at the end of her ramblings that strong dissent was going to be seen about severability…may mean the whole thing is gone or with them taking so long to rule..someone(Kennedy)is having second thoughts and they’re trying parse the whole mess.

bluesdoc70 on June 25, 2012 at 8:42 PM

She also said something that day about dissenting opinions “sometimes” being as important as majority opinions — whatever that means. So, was she trying to self-soothe, or was she throwing a bone to the conservative…minority?

I think the Court will strike down Obamacare in its entirety and leave the fallout, as it should, to the remaining branches and the states to deal with.

And I hope the justices read the above and obey me.

Sherman1864 on June 25, 2012 at 8:13 PM

The legislation had a severance clause, that upon revision was removed before final passage. Part of the deliberative process that achieved this result included arguments that the mandate was critical as a funding mechanism for the rest of the bill. The court may not want to get involved in the legislative process that produced this clusterfark, but intentionally removing a severence clause–a standard set of language aded to most any legislation of this size–has to have some meaning to it, or the bill would not have been produced without the clause.

If the mandate falls, how does a justice argue that they will sever that part from the rest of the legislation when the legislature explicitly removed that clause? If the mandate goes, not striking the entire law would be judicial activism.

Even with a change in the senate next year to the Pub side there won’t be enough to overcome a filibuster by the dems. We need to recognize that the dems want single payer and keeping the atrocity on line will speed that up.

chemman on June 25, 2012 at 8:46 PM

My hunch is the country hasn’t forgotten 2010 and the Dems..
Back door deals..and all..

Once the SC kills the mandate…I just don’t see the energy as there was in 2010…

Shocking as it may sound, killing the mandate while keeping the rest is, in fact, much worse than just leaving OgabeCare alone. The latter just means that the court was convinced by Ogabe’s arguments (or perhaps threatened by his thugs) and may eventually come to regret or reconsider its course. Whereas the former option means that the so-called “court of law” doesn’t give a flying eff for the actual written law, since it can disregard the glaring absence of severability clause in the law and remove its key chapter leaving the rest intact.

…If the mandate falls, how does a justice argue that they will sever that part from the rest of the legislation when the legislature explicitly removed that clause? If the mandate goes, not striking the entire law would be judicial activism.

BryanS on June 25, 2012 at 8:50 PM

Ever hear of “penumbras” and Roe v. Wade? At this stage of our history, the court can do whatever the hell it likes.

I am surprised that people are cheering this variation. If the mandate is struck down the insurance companies are left holding the bag. This would appear to be the worst scenario for the market as there are fascist imposed mandates with no ability to pay.

At first blush it seems that either keeping the whole damn thing or losing it all is preferable, naturally losing it all being the first preference.

Ginsberg wants to be at least the longest serving Jewish justice, passing Brandeis’ record, and that would teke her into sometime in 2013. What she’d do with Romney in the White House if she makes it to that point, I don’t know.

Not good enough, not for me. All or nothing. The entire bill is over reach.

shar61 on June 25, 2012 at 8:50 PM

I agree…
Just that the SC probably doesn’t want to be seen as the 9 individuals that took out Obama’s signature bill…
When all they need to do is remove a big chunk of the funding that surely is Unconstitutional..
Let Congress take care of the rest…

It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent.

AP’s on to something here, sort of. Here’s how it works: The senior-most Justice in the majority either writes or chooses who writes the majority opinion and the senior-most Justice in the minority gets to do the same as to the minority opinion.

Looking at the list, Ginsburg is the most likely senior-most Justice who would be in the minority, assuming that Roberts chose himself to write the majority opinion. Based on her recent comments about there being some major debate (read fights) on some of these last cases, it would be likely that she had chosen herself to write the minority opinion instead of selecting Breyer or the Obama newbies to do so.

However, it is also possible — and I’m sure hoping not — that Kennedy chose Ginsburg to write the majority opinion upholding ObamaCare and Roberts chose himself to write the minority opinion. Yet, there is reason to doubt this scenario, since Kennedy would’ve chosen himself to write the majority opinion if that were the case, both for the glory and to show himself as a true moderate, particularly after all the crap he got after Bush v. Gore, Citizens United, etc.

Overall, I’m feeling far more confident than I was this morning that at least the mandate will be struck down, thus killing the only mechanism for funding this insane law.

Come on. For sure the mandate is donefer. The only question is what remains of the rest of the law. Politico looks like its trying really hard to buoy democrats for the next couple of days; this concoction of a vote is as likely as the mandate surviving. What’s more likely is the Court threw Obama a bone on SB1070 and they’re about to hammer him on OCare.

Ginsburg was the one who said there was going to be severe descent, or words to that effect. 6-3, the whole thing goes down. SCOTUS’s war on women.

But back then they still didn’t know how persistently and deeply unpopular the bill would become. And mind you, even then – with the Democrats with a super-majority in the Senate and a large majority in the House – single-player was never a serious possibility.

If Roberts and Ginsburg are writing the opinions, how do we know which is which? We’ve assumed he’s doing the majority, but couldn’t he by the logic being used be doing the dissent instead? Not trying to poop the party, just curious.

Waggoner on June 25, 2012 at 8:26 PM

I had the same exact question.

Roberts always gets to switch his vote to the majority so that he can write the opinion.

pedestrian on June 25, 2012 at 8:27 PM

Yeah, AP was hypothesizing that if the vote was 5-4 to uphold, that Roberts would switch to the uphold side and write the 6-3 to uphold opinion. Doesn’t makes much sense for a judge to author a SCOTUS opinion that he doesn’t even agree with, but what do I know.

Wickard isn’t going anywhere without them holding oral arguments specifically related to the issue ofwhether Wickard should be overruled. Sorry, but no way the Court goes there in this case.

McDuck on June 25, 2012 at 8:53 PM

Wickard could be pigeonholed as a WWII case in a wartime setting in which every resource was controlled and rationed for the war effort. Wage controls gave rise to employers giving a “raise” of health insurance, which was not that common a benefit before WWII.

A “Wickard is limited to its facts” ruling is as good as an overruled.

Missing from this: a discussion on a possible punt (the mandate is a tax, and therefore cannot be ruled on till it goes into effect). I know most people think it won’t happen, but we no longer live in a sane (and somewhat predictable) world.

I’d like to think the whole law goes because the Democrats purposely took out the severability clause. I believe (and I’ll bet some of the Justices believe this also) that they were listening to those who said this might be unconstitutional, so they took out severability thereby daring the court to strike down the whole law. I can imagine Scalia, Thomas, and Alito thinking that and believe they could persuade Roberts and Kennedy that the Democrats were just playing a game with the court on this.

If anyone has a much better explanation for why they would remove that clause, I’d love to know because I can’t think of one.

If the mandate falls, how does a justice argue that they will sever that part from the rest of the legislation when the legislature explicitly removed that clause? If the mandate goes, not striking the entire law would be judicial activism.

BryanS on June 25, 2012 at 8:50 PM

The absence of a savings clause is not dispositive. There is a presumption of severability, regardless of whether the law itself contains any reference to severability.

If you want to know more about this, here is a pretty good (and not too long or complex) summary:

However, it is also possible — and I’m sure hoping not — that Kennedy chose Ginsburg to write the majority opinion upholding ObamaCare and Roberts chose himself to write the minority opinion. Yet, there is reason to doubt this scenario, since Kennedy would’ve chosen himself to write the majority opinion if that were the case, both for the glory and to show himself as a true moderate, particularly after all the crap he got after Bush v. Gore, Citizens United, etc.

…If the mandate falls, how does a justice argue that they will sever that part from the rest of the legislation when the legislature explicitly removed that clause? If the mandate goes, not striking the entire law would be judicial activism.

BryanS on June 25, 2012 at 8:50 PM

Ever hear of “penumbras” and Roe v. Wade? At this stage of our history, the court can do whatever the hell it likes.

Rixon on June 25, 2012 at 8:52 PM

You can perhaps make decisions about general meanings of provisions of a constitution, but this is review of specific legislation. Write and execute contracts in the conduct of business. I’ve never executed or offered a contract without a severance clause for the obvious reason that the presumption is that the whole agreement gets tossed without one. I think the severance clause thing would take incredible backflips to ignore.

It was passed by budget reconciliation, so supposedly can be repealed that way. No cloture vote needed in the Senate. (Do need the GOP holding Congress and WHite House, though).

Wethal on June 25, 2012 at 8:48 PM

Right, passed by budget reconciliation because it was a cost saving, and the Republicans can very credibly strike it down also by budget reconciliation because getting rid of it will be a cost saving. Congress writes its own loosey-goosey rules.

I think people are expecting way too much from these cases. Even if the mandate goes, don’t count on much law (Wickard and so forth) being disturbed. The Court might say that it is a bridge too far, but it will not reconsider some of its more extreme past precedents at this timr.

Oh, and I don’t recall where Kennedy said he would retire if a Republican won. You are reading something into his words that he may or may not have meant.

Another thought: Obama would not have given the USSC the finger this afternoon w his EO if he thought the individual mandate in the ACA had a prayer of survival. He would have waited until next week. Obama was making the best of a bad week.

Since we’re playing this game until we know for sure, it seems to me the Court siding with the Admin on the Miller case (8th Amend forbids mandating sentence of life in prison without parole for juveniles) and splitting the baby on the Arizona case (basically, the court left the enforcement of immigration laws to Feds but OK’d states to continue “gathering info” to assist Feds; i.e., the “where’s your papers” as part of an otherwise valid arrest) means they are, at minimum, throwing out the mandate & Title I of Obamacare, if not throwing out the entire law, either of which cannot, in light of today’s decisions siding with the Admin, be seen as being “partisan” or “against Obama.”

It is also important to note that assuming Roberts is writing the Obamacare decision that Kennedy wrote the Arizona decision & Roberts signed on to it — Kennedy & Roberts are voting together. Further, assuming Roberts is writing the Obamacare decision, the argument that he would go against his core Constitutional beliefs & vote with the liberals to have a 6-3 opinion as some sort of “window dressing” is ridiculous on it’s face. I realize AP has been advocating that for a while now, but it is simply unfathomable to me that Roberts would do this. This decision is going to probably be the biggest of the Roberts’ Court — he isn’t going to sell out his judicial philosophy to make Obama, the Dems or anyone else “happy.”

Missing from this: a discussion on a possible punt (the mandate is a tax, and therefore cannot be ruled on till it goes into effect). I know most people think it won’t happen, but we no longer live in a sane (and somewhat predictable) world.

nobar on June 25, 2012 at 9:00 PM

The problem is, which the Florida district court first noted, is that Obama is on (video) record saying it was not a tax, as were Reid and Pelosi. IIRC, the law is written so it would not be considered a tax, as the One promised everyone making 250K or less there would be no tax hikes.

When they got into the courts, the Dems then thought that calling it a tax and relying on the taxing authority was a better tactic. They have a credebility problem with this. I think the prior statements came up during oral argument.

Ginsberg is not writing the minority opinion, she is busy helping Egypt draft a new constitution. She is being consulted so the Egyptians would not foolishly use a flawed model like the US Constitution.

If there were some reference to it in the legislative history (e.g., if a Senator said on the record: “We’re removing all references to severability from the bill because we want this to be an all or nothing proposition”), then they’d need to consider it. But as far as I’m aware, there is nothing specific in the record about why the severability language was removed from the Obamacare bill, so the Court probably won’t presume anything from its absence.

It could be Ginsberg writing for the majority and Roberts writing the dissent, you know.

Steven Den Beste on June 25, 2012 at 9:16 PM

I find that an extremely unlikely scenario.

If there was a 5-4 majority to uphold the mandate, then Roberts would join the majority and write the decision to prevent Breyer or Sotomayer or Ginsberg from issuing a decision that would be too accepting of federal government power or even assert new constitutional rights.

But as far as I’m aware, there is nothing specific in the record about why the severability language was removed from the Obamacare bill, so the Court probably won’t presume anything from its absence.

AZCoyote on June 25, 2012 at 9:17 PM

It isn’t just the mandate; there could be other parts, such as guaranteed issue, that have to go down with the mandate, too. The admitted at oral argument that the mandate and guaranteed issue were linked.

That was Scalia’s point: if we take out the mandate: what other things are attached to it in the 2000+ pages that have to be asevered out, too. He was not about to have his clerks wade through and try to find the threads of the mandate.

They also have to decide the onerous Medicaid mandate, and anything attached to that that would fall with it.

Well there are two other outstanding majority opinions to be released on Thursday aside from the health care opinions, plus we don’t know if Roberts is going to write all three days’ worth of opinions himself. I had thought Ginsburg might take the Medicare expansion opinion and Roberts the individual mandate/AIA opinion, but she may simply have the two other opinions that for whatever reason proved hotly contested.

If there were some reference to it in the legislative history (e.g., if a Senator said on the record: “We’re removing all references to severability from the bill because we want this to be an all or nothing proposition”), then they’d need to consider it. But as far as I’m aware, there is nothing specific in the record about why the severability language was removed from the Obamacare bill, so the Court probably won’t presume anything from its absence.

AZCoyote on June 25, 2012 at 9:17 PM

Well according to Scalia, they definitely should not consider the legislative history, but I too find it very strange that the severability clause was left out. Simple incompetence? It almost has to be.

If Obamacare is struck down entirely, what happens to the thousands of people hired in HHS and the IRS to implement it?

slickwillie2001 on June 25, 2012 at 9:10 PM

Perhaps Obama will re-assign them to ICE. That agency is going to need a lot of people to review all those applications for residency and 2-year work permits from the 1.4 million or so “DREAM” illegal aliens who’re now eligible for Obama’s executive amnesty.

It is also important to note that assuming Roberts is writing the Obamacare decision that Kennedy wrote the Arizona decision & Roberts signed on to it — Kennedy & Roberts are voting together. Further, assuming Roberts is writing the Obamacare decision, the argument that he would go against his core Constitutional beliefs & vote with the liberals to have a 6-3 opinion as some sort of “window dressing” is ridiculous on it’s face. I realize AP has been advocating that for a while now, but it is simply unfathomable to me that Roberts would do this. This decision is going to probably be the biggest of the Roberts’ Court — he isn’t going to sell out his judicial philosophy to make Obama, the Dems or anyone else “happy.”

Dark Star on June 25, 2012 at 9:11 PM

As Dan Rowan would say, you may be onto something.

I don’t even have a dog in this race, as O’bama exempted NH from the whole O’bamacare sham in order to Buy Votes.

But if I had to hazard a guess, I would postulate that the Mandate part gets struck down 6-3 or even 7-2 and some but not all of the rest is upheld by a “bitterly divided” 5-4 decision..

If the whole law is invalidated, it may diminish conservative determination to defeat Obama in November.

matthew8787 on June 25, 2012 at 8:59 PM

Zero and Co. are not going down without a fight. I’m sure he has Plans B, C and D up his sleeve. After suffering 3.5 years of these criminals, there is nothing that will stop me from being at the polls when they open in Nov.

Amjean, I misspoke. There are millions of seniors who are traditionally Democratic but hate Obamacare. If the whole statute is tossed, BO could lure them back. If there is any vestige of the law left (eg, death panels), they’ll vote strongly for Romney, regardless of past voting history.

I don’t have enough migraine medication to read the whole convoluted piece of crap, so I’d just as soon see the entire thing fall and then let congress write appropriate legislation to put the “good” pieces back into law where possible…

And it very well could be her last case. She will retired fully aware that Obama’s relection are kaput and the dream of a progressive supreme court now and in the future buried with Obamacare and this administration. He last successful volley will be to resign and allow a younger Kagen like appointment to take up the cause only to realize that Kennedys replacement will be far more to the right,Souter a year later far more to the right and a SCOTUS that will once and for all hold these truths to be self evident. The constitution is a document for the limiting of Goverment and not it empowerment and with it the socialist road fully demolished.
Hip hip hurruh.

Watch the video-the breathless Democrat Media Channel 9 guys say he got a crowd of about 1,200 people in Durham, but fail to mention that those 1,200 Useful Idiots comprise less than 9% of the entire UNH student body.